Lee-Crespo v. Schering-Plough Del Caribe Inc.

• Decision Date: 31 December 2003
• Docket Number: No. 03-1033.,03-1033.
• Citation: 354 F.3d 34
• Parties: Alice Mercedes LEE-CRESPO, Plaintiff, Appellant, v. SCHERING-PLOUGH DEL CARIBE INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

354 F.3d 34

Alice Mercedes LEE-CRESPO, Plaintiff, Appellant, v. SCHERING-PLOUGH DEL CARIBE INC., Defendant, Appellee.

No. 03-1033.

United States Court of Appeals, First Circuit.

Heard November 5, 2003.

Decided December 31, 2003.

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Angelique Doble Bravo, with whom José A. Gallart and Cristina Alcaraz Emmanuelli were on brief, for appellant.

Luis F. Antonetti, with whom Angel L. Berberena, Jesús Cuza, and Goldman Antonetti & Córdova PSC were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

This is a same-sex employment discrimination case in which plaintiff Alice Mercedes Lee-Crespo seeks to hold her employer vicariously liable primarily for the actions of her supervisor. The appeal is from the grant of summary judgment to Schering-Plough Del Caribe, Inc., the employer. Lee-Crespo claims that she was subjected to a hostile work environment and constructively discharged as a result of sexual harassment by her immediate supervisor, a female, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and Puerto Rico law. The district court held that the undisputed material facts permitted the conclusion that the conduct of the supervisor was boorish and unprofessional, but that the incidents were not severe or pervasive enough to alter the terms and conditions of Lee-Crespo's employment, and that Lee-Crespo was not constructively discharged. Crespo v. Schering Plough Del Caribe, Inc., 231 F.Supp.2d 420, 429, 433 (D.P.R. 2002).

A jury could easily find that Lee-Crespo was subjected to incivility. But Title VII is neither a civility code nor a general anti-harassment code. Title VII requires, rather, that the level of incivility or harassment must amount to either a tangible or a constructive employment action. Furthermore, the alleged harassment and the employment action must be causally related. The discrimination must be based on gender or some other prohibited category. Here, Lee-Crespo complains of a general atmosphere of harassment by her supervisor that she argues was so bad it drove her out of her job and was a constructive discharge. She fails to show that the harassment she suffered amounted to a constructive discharge. She also complains that her failure to get a transfer to Florida and her reassignment to a new sales territory in Puerto Rico were tangible employment actions. But those decisions were not made by her supervisor, but by her supervisor's superiors, none of whom participated in any harassment. Indeed, as to the reassignment, these upper level supervisors were being responsive to Lee-Crespo's statements that she did not want to work with her supervisor. There is nothing showing a causal link between any alleged harassment and the motivation of the non-harassing managers in these decisions. As a result, we affirm.

I.

On appeal from the entry of summary judgment, this court views the facts in the light most favorable to Lee-Crespo and draws all reasonable inferences in her favor. Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 185 (1st Cir.2003).

Lee-Crespo provided the following account in her deposition. On April 28, 1999, she began training with Schering-Plough (Schering), a pharmaceutical company, and on May 19, she began working as an entry level medical salesperson. She had no prior experience in the medical sales field. Lee-Crespo was initially assigned to visit doctors in the Hato Rey area of San Juan, Puerto Rico, but nothing in her employment offer guaranteed her a specific sales area. Hato Rey has a high concentration of physicians.

Mayra González was promoted from being a sales representative to the position of district manager in June 1999 and became Lee-Crespo's immediate supervisor in July 1999. Thus, a neophyte manager, González, came to supervise a neophyte sales representative, Lee-Crespo. About thirteen other employees also worked under González's supervision. On July 4, 1999, González told Lee-Crespo: "[Y]ou know that now I'm your supervisor and now you have to do what I tell you to do." González also told Lee-Crespo that she should never go to González's boss, Anita Bursian, with a problem. The same day, González made comments to Lee-Crespo regarding the private lives and sexual preferences of other Schering employees. González said that she did not get along with her ex-boss, whom she said was a lesbian and treated her badly, and she discussed a Schering employee who, although unmarried, had lived with and had a child with a doctor. Lee-Crespo's testimony was that González had many "stories" about co-workers.

González repeatedly questioned Lee-Crespo about how she, as a "rookie," had come to be assigned to the Hato Rey territory. At one point, González told Lee-Crespo that the reason she was assigned there was that Schering's general manager, Roberto Mercade, was "crazy about [her] looks." González advised Lee-Crespo that she should become González's best friend in the company and should tell her everything that happened at Schering. After Lee-Crespo earned a large commission, González told Lee-Crespo to invite her to lunch because Lee-Crespo earned more money than she did. Lee-Crespo declined and González never asked her again.

González also bothered Lee-Crespo with meddlesome and prying questions about her personal life and made comments about her appearance and behavior. González asked Lee-Crespo for the names of the stores where she bought her clothes and accessories. González also asked for Lee-Crespo's opinion about the doctors she visited and inquired whether she ever dated doctors. González once told Lee-Crespo that she had always wanted to be tall and blonde like her and commented that Lee-Crespo was "enviably thin."

The relationship had its ups and downs. At times friendly, González was also critical of Lee-Crespo. González accused Lee-Crespo of being very disorganized and said that her disorganization probably explained why she did not have a husband. González also told her that she was a mediocre sales representative and stated that she was using her physical attributes, not her technical knowledge, to sell Schering's products. Lee-Crespo said that González often looked at her "in a very intimidating way." At one point, González said "You have never married because maybe you're strange, `rara'?"¹ González commented that Lee-Crespo and María Montalvo, one of Lee-Crespo's co-workers, would be able to have lunch together frequently and that she had heard that Lee-Crespo and Montalvo got along very well. More than once, González told Lee-Crespo that she did not appreciate the fact that she had a job as a sales representative for Schering.

In August 1999, while González and Lee-Crespo were at a hotel during a Schering convention, Anita Bursian complained about having a migraine headache. When Lee-Crespo offered to get some medication from her hotel room, González asked Lee-Crespo for her bedroom keys and said that she would get the medication from Lee-Crespo's room. Lee-Crespo refused to hand over her keys, and that was that.

On several occasions, Lee-Crespo complained about González to Anita Bursian, González's boss. She first went to Bursian sometime between October and November 1999 and "told her everything." But Lee-Crespo never explained on the record what this "everything" was. Lee-Crespo also occasionally spoke critically to other fellow employees about González and about individual incidents.

One day in October 1999, González told Lee-Crespo's co-workers that she had heard that Lee-Crespo was "crawling drunk" at a wedding. The accusation was untrue. When Lee-Crespo said that González was wrong and asked her to stop making the false statement, González backed off and told Lee-Crespo that she could not take a joke. On another occasion in October, González called Lee-Crespo and, in a loud voice and with a scolding tone, accused her of having a negative attitude and threatened to reassign her to a new territory. In December, González informed her that she would have to work during a week that was considered a holiday period for sales representatives. Lee-Crespo called Schering's personnel office and was advised that González could not require her to work the additional week. She did not work that week.

Still, a "Performance Development Plan" for Lee-Crespo, dated January 10, 2000, and signed by González, provided positive evaluations of Lee-Crespo's work. Among other things, the document notes Lee-Crespo's "[e]xcellent territory analysis," "[e]xcellent business development," "[e]xcellent communication skills," and "[g]ood administrative work, all reports on time."²

On January 10, 2000, Lee-Crespo became sick with asthmatic bronchitis and took four days of sick leave from work. González called Lee-Crespo at home and paged her and expressed doubts regarding her illness. On January 12, González ordered her to fax a medical certificate evidencing her illness, even though company policy did not require the production of such a certificate until returning to work. At the end of that January, Lee-Crespo became sick with acute indigestion at Schering's national convention. When Lee-Crespo informed González that she was ill and excused herself, González replied, "are you afraid of me?" and asked that question "in a very disgusting way." Later during the same convention, González commented that Lee-Crespo almost never wore skirts, looked very sexy in skirts, and should wear them more often. At a pediatrician's convention in February 2000, González approached Lee-Crespo from behind, hugged her, and whispered in her ear a request for a cookie from another table.

In February, Lee-Crespo "told Anita Bursian that this was going so far, that [she] needed to go and that [she] wanted to leave this hostile environment so [she] needed a transfer." Lee-Crespo gave Bursian and González a letter for the human resources...